Red meat for defense

In slaughterhouse manager's case, judge under fire for meeting with prosecutors.

Mike Scarcella

The National Law Journal

June 06, 2011

Sholom Rubashkin
Photo: AP / Lara Neel, Argus Leader

Lewin & Lewin's Nathan Lewin
Diego M. Radzinschi/NLJ

In the months leading up to the May 2008 raid on an Iowa slaughterhouse, U.S. District Judge Linda Reade in Cedar Rapids participated in a series of meetings with law enforcement agents and prosecutors, government memos show.

Immigration officials and prosecutors, preparing for an enforcement action that would generate national attention, briefed the judge — sometimes at her request — on a variety of topics, including charging strategy and the number of anticipated cases against undocumented workers, according to memos and e-mails released by prosecutors and federal agents. The records were produced in a response to a defendant's records request.

Reade, chief judge of the U.S. District Court for the Northern District of Iowa, is identified as a "stakeholder" in one government document in the prosecution of Sholom Rubashkin, the manager of the meatpacking plant.

Rubashkin's lawyers contend they were unaware of the extent of Reade's interaction with government officials before Rubashkin was charged, tried and convicted on dozens of bank fraud charges in late 2009. Last year, Reade, who presided over the trial, sentenced Rubashkin to 27 years in prison — two more years than prosecutors recommended — and ordered him to pay nearly $27 million in restitution. Critics, including a group of former U.S. Department of Justice officials, assailed the prosecution as overzealous.

Rubashkin is fighting the case on appeal, and central to his pitch for reversal is the allegation that Reade was so intertwined withthegovernment in the pre-indictment stage she should have recused. Rubashkin's appellate team, led by Nathan Lewin, argues that Reade's early and frequent involvement created the appearance of partiality.

"To allow unfettered discussion between the prosecution and the judge about forthcoming raids and searches, I don't think that can or should be permissible," said Lewin of Washington's Lewin & Lewin. "It's only human nature that if you become part of the prosecution team, that has to affect your conduct during the trial. The one error that affects the entire proceeding was the judge's failure to recuse herself."

The U.S. Court of Appeals for the 8th Circuit is set to hear the dispute on June 15 in St. Louis. The American Civil Liberties Union of Iowa, the National Association of Criminal Defense Lawyers and the Washington Legal Foundation each filed friend of the court briefs supporting Rubashkin.

Prosecutors in Iowa insist that Reade's communication with the government did not cross ethical lines.

Reade, prosecutors said, was not told in advance where the operation would unfold and she was not told about the targets. Reade, according to prosecutors, spoke generally about marshalling court resources. "There is no evidence to suggest Judge Reade expressed any opinion as to the propriety of the enforcement action or the worthiness of the targets — only that the court was willing to do what it could to prepare for the court's role in the expected prosecutions," Assistant U.S. Attorney Peter Deegan Jr. said in a brief in March in the 8th Circuit.

Neither Deegan nor Reade, a former federal prosecutor in Iowa who has been on the bench since 2002, returned messages seeking comment. Deegan will argue against Lewin.

FOIA FINDINGS

Rubashkin, jailed since his conviction, managed the kosher meatpacking plant Agriprocessors when federal Immigration and Customs Enforcement officers raided the facility. In late 2008, Rubashkin, 51, was charged with financial crimes for inflating the value of collateral for draws on a line of credit tied to the financing of the plant.

Months after he lost at trial, Rubashkin's lawyers received a stack of documents produced in response to a Freedom of Information Act suit. The papers revealed Reade's communication with immigration agents and prosecutors. Rubashkin's lawyers said the information was troubling. They pushed for a new trial.

In an affidavit in support of Rubashkin, legal ethics expert Mark Harrison of Phoenix's Osborn Maledon, hired for $500 an hour to review the case, said Reade violated the code of conduct for federal judges. Harrison, who has represented lawyers and judges in discipline proceedings, said Reade failed to "disclose the nature, substance and extent of the ex parte communication to all parties."

In October 2010, Reade shot down Rubashkin's demand for a new trial. She said in a ruling she did not pledge to personally "support the operation in any way possible." Her offer of support, she said, "clearly appears in the context of the court's duty to logistically prepare for the arrest of hundreds of persons.

"A judge's duty not to recuse herself when unwarranted is just as important as a judge's duty to recuse when required," Reade said. "Based on the facts and ignoring all rumor and innuendo, the court finds that recusal was not required in this case."

Reade said she declined to "credit" affidavits from Harrison and New York University School of Law professor Stephen Gillers, who questioned the conduct of the prosecutors in the case. The judge said Harrison and Gillers, a legal ethics expert, showed a "proclivity to rely on defense counsel's mischaracterizations of the facts."

Prosecutors argue that Rubashkin's lawyers were aware Reade and government officials interacted preceding the raid. In a co-defendant's case, Reade declined to recuse herself. In that case, she described her association with the government as logistical.

Washington-based Jones Day appellate litigation partner Shay Dvoretzky, a lawyer for Rubashkin, said the FOIA documents revealed the judge was more deeply involved in the planning stages than previously known. Dvoretzky dismissed the government's claim that Rubashkin's recusal motion wasn't filed in a timely fashion.

Some interaction between judges and prosecutors, Dvoretzky said, may be proper. Judges sign search warrants and authorize wiretaps, he noted. "These documents suggest a far greater contact," said Dvoretzky, who specializes in appellate advocacy.

Judicial ethics scholar Arthur Hellman, who is not involved in the Rubashkin case, said lawyers are generally reluctant to file recusal motions to avoid antagonizing a judge. "It's understandable that lawyers think twice, and twice again, before filing a motion to recuse," said Hellman, a professor at the University of Pittsburgh School of Law who has written about judicial misconduct. "In a sense you are at some level questioning the judge's integrity, or in the very least, judgment."

Mike Scarcella can be contacted at mscarcella@alm.com.